Citation Nr: 0633772
Decision Date: 11/01/06 Archive Date: 11/16/06
DOCKET NO. 04-10 322 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephanie L. Caucutt, Law Clerk
INTRODUCTION
The veteran had active military service from September 1961
to June 1964.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating determination
of a Regional Office (RO) of the Department of Veterans
Affairs (VA) in New Orleans, Louisiana.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
The Board notes that the veteran testified at a February 2004
RO hearing. A transcript of that hearing is of record.
REMAND
The veteran claims he is entitled to service connection for
PTSD. Service connection for PTSD requires a diagnosis of
the disorder; credible supporting evidence that the claimed
in-service stressful events actually occurred; and a link, as
established by medical evidence, between current symptoms and
the claimed in-service stressor. See 38 C.F.R. § 3.304(f)
(2006).
The veteran was diagnosed with PTSD in October 2001 by a VA
psychology technician. The October 2001 record indicates
that the veteran reported two stressors. First, he indicated
that he suffered a head injury when he fell down a flight of
stairs during an alert. The veteran also reported that his
unit was constantly on alert for possible attack during the
Berlin Crisis, and there was fear of annihilation and
possible nuclear attack. The veteran indicated that his
military occupational specialty (MOS) was cook but reported
that he actually functioned as an infantryman; he contends
that his duties included perimeter guard duty while the unit
was on constant alert. The veteran's service records do not
provide any evidence that he functioned as an infantryman.
Rather, they indicate that he functioned within his MOS.
The October 2001 technician's summary indicates that although
the veteran was not involved in combat, his position in
Germany during the Berlin Crisis exposed him to serious
threats of hostilities, possibly involving nuclear weapons,
between the United States and Russia. Based on the veteran's
current symptoms, the psychology technician concluded that
the veteran met the full diagnostic criteria for PTSD, as
well as showed symptoms of a borderline personality disorder.
The veteran was referred to the VA PTSD program, and his VA
medical records indicate his continued participation in such
program. Subsequent medical records appear to carry forward
the diagnosis of PTSD from the October 2001 evaluation. A
December 2002 VA treatment record indicates that the veteran
was a Vietnam combat veteran with PTSD. The veteran's
service records indicate that he was never in Vietnam and
that he did not serve in combat. The veteran has not
indicated, as part of his PTSD claim, that he served in
combat or that he was in Vietnam. An October 2003 VA
treatment record, signed by a physician, indicates that the
veteran has PTSD, but does not relate such diagnosis to any
specific stressor.
In addition to the stressors identified in the October 2001
evaluation, the veteran also stated that he was under stress
during the Cuban Missile Crisis in a May 2002 written
statement. Specifically, he states that his stress was due
to being under the threat of a nuclear war with Russia.
The November 2002 rating decision and March 2004 statement of
the case indicate that the RO denied the veteran's claim
because the October 2001 diagnosis was based on unverified
stressors. Specifically, the veteran's service medical
records indicate that although he did claim falling down a
flight of stairs while in service there is no mention of a
head injury in such record, nor any other service medical
record.
The veteran's service medical records, assignment record, and
records related to his administrative discharge are all
associated with the claims folder. Such records indicate
that the veteran was stationed in Germany from February 1962
to June 1964. These records also verify the veteran's MOS as
cook. However, there is no evidence in these personnel
records regarding the circumstances and assignments for units
to which the veteran was assigned.
In light of the above, the Board finds that there has been
inadequate development of the veteran's claim. Specifically,
sufficient attempts have not been made to verify the
veteran's claimed non-combat stressors of being on constant
alert and under the threat of attack, possibly nuclear,
during the Berlin Crisis and the Cuban Missile Crisis.
Seeing as the October 2001 diagnosis of PTSD is based on at
least the claimed stressor related to the Berlin Crisis, a
remand is necessary to attempt verification of these
stressors.
Additionally, if the evidence reveals that the veteran's unit
was on heightened alert during either the Berlin Crisis or
the Cuban Missile Crisis, the Board finds that a VA
examination should be provided to the veteran.
Finally, the Board observes that Dingess v. Nicholson, 19
Vet. App. 473 (2006), is applicable to the veteran's claim of
entitlement to service connection for PTSD. Dingess held
that VA must provide notice of all five elements of a service
connection claim, including the degree of disability and the
effective date of an award. In the present appeal, the
veteran was not provided with notice regarding the type of
evidence necessary to establish a disability rating or
effective date. As these questions are involved in the
present appeal, such notice should be provided to the veteran
upon remand.
Accordingly, the case is REMANDED for the following action:
1. Review the file and prepare a summary
of all the veteran's claimed stressors,
including those mentioned in his May 2002
statement and the October 2001 VA medical
report.
2. Send a letter to the U.S. Army & Joint
Services Records Research Center (JSRRC)
asking them to provide any available
information which might corroborate the
veteran's asserted in-service stressors,
particularly whether his unit was on a
heightened or constant state of alert
during the veteran's time in Germany,
including during any Berlin Crisis and/or
Cuban Missile Crisis, as well as whether
the veteran participated in any perimeter
guard duty. Please provide JSRRC with the
following: the prepared summary of the
veteran's claimed stressors, copies the
veteran's DD-214, and any service
personnel records obtained showing service
dates, duties, and units of assignment.
3. If, and only if, JSRRC is able to
verify any of the veteran's claimed
stressors, schedule him for a VA
psychiatric examination to ascertain the
nature, severity, and etiology of any PTSD
found. The claims file must be made
available to and reviewed by the examiner
in conjunction with the examination. All
necessary special studies or tests
including psychological testing and
evaluation must be accomplished.
The RO must provide the examiner a summary
of the verified stressors, and the
examiner must be instructed that only
these events may be considered for the
purpose of determining whether exposure to
a verified in-service stressor has
resulted in the current psychiatric
symptoms. The examination report must
include a detailed account of all
pathology found to be present. If the
diagnosis of PTSD is deemed appropriate,
the examiner must specify (1) whether each
alleged stressor found to be established
by the record was sufficient to produce
PTSD; and (2) whether there is a link
between the current symptomatology and one
or more of the in-service stressors found
to be established by the record and found
sufficient to produce PTSD by the
examiner. The report of examination
should include a complete rationale for
all opinions expressed.
4. Provide the veteran with notice
regarding the disability rating and
effective date. See Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
5. Following completion of the above, and
any other necessary development,
readjudicate the veteran's claim of
entitlement to service connection for
PTSD. If the benefit requested on appeal
is not granted to the veteran's
satisfaction, issue a supplemental
statement of the case. The supplemental
statement of the case must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations pertinent to the claim
currently on appeal. Thereafter, the case
should be returned to the Board for final
appellate review, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).